(CN) — A proposal to settle hundreds of thousands of claims in a multi-district class action lawsuit over Monsanto's weed-killing product Roundup was once again met with skepticism by a federal judge on Thursday, who questioned the plan's $11.25 million earmarked for plaintiff's attorneys.
"The attorneys fees are quite a bit too high, given the nature of the claims, the relatively insubstantial nature of the claims, and the relatively small amount of litigation," said U.S. District Judge Vince Chhabria.
Monsanto, the controversial agrochemical company owned by the German conglomerate Bayer, agreed in 2021 to pay between $23 million and $45 million to resolve more than a dozen lawsuits filed all over the country by customers who said they had, in effect, overpaid for Roundup because it had no warning label saying that Roundup poses a cancer risk. Bayer, which has always disputed that Roundup causes cancer, agreed to pay back up to 20% of the retail price of Roundup products, or between 50 cents and $33 per bottle.
Judge Chhabria questioned the proposed settlement in April, saying at a hearing, "It’s like Monsanto taking a penny out of its pocket to get rid of what is essentially a nuisance lawsuit. Of course the people who do benefit significantly are the plaintiffs’ lawyers who would presumably stand to cover a significant fee award.”
Nevertheless, the judge ultimately approved the settlement range (with the exact amount to be determined by the number of approved claims), but ordered the settlement language to include a plainly worded clause advising class members of their rights to sue over medical issues. The clause read: "Class members will retain their right to sue if they currently have or later develop, cancer or any other illness or injury from exposure to the products.”
Since that preliminary approval, nearly 250,000 claims have been submitted, with the number of valid claims estimated at between 226,268 and 230,097. According to the terms of the latest settlement proposal, each class member would receive an average payment of between $56.17 and $61.75. In total, around $13 million would go to the plaintiffs. Their lawyers would get $11.25 million, and a million or so would go to various fees.
The judge cited the Ninth Circuit Court of Appeals, which has set a benchmark of 25% of the total settled amount for fees paid to plaintiff's lawyers in a class action law suit. He suggested that the attorneys' award should be closer to $5 million, which would mean a greater amount paid out to the class members, in order to meet the previously agreed upon floor of $23 million.
Gillian Wade, the lead attorney in the case, argued they had used the 25% benchmark; they had just applied it to the maximum amount that Monsanto had agreed to pay last year — $45 million. The judge appeared baffled by that argument.
"To peg your attorneys fees to $45 million dollars," he said. "You may as well peg it to the moon. It has not greater connection to 45 million dollars than to the moon."
He added: "We’re asking, what sort of benefit did attorneys get class members? Isn’t the best measure of that the money attorneys got class members?"
"It is," Welch said. "But it’s not the attorneys' fault if claims aren’t made."
"It’s not your fault," the judge said. "But isn’t it the best measure of the result?
"This case," he added, "not much has happened. There hasn’t been much litigation. A lawsuit was filed and it was settled pretty quickly."
The judge said he would read over the materials submitted to him and think it over.
In an email, a spokesperson for Bayer wrote that the company supports the proposed settlement, and "believes the proposal is fair and will provide significant benefits to the class."
The dollar values in this case amount to little more than a rounding error for Bayer, a German multinational conglomerate with more than $44 billion in annual revenue. The company has already agreed to pay out billions of dollars over claims that Roundup’s active ingredient glyphosate causes cancer. In June 2020, Bayer settled nearly 100,000 such lawsuits, agreeing to pay claimants $10.9 billion.
Bayer has always insisted that Roundup is safe, but has vowed to start removing glyphosate-based products from retail store shelves this year – not for safety concerns, but to "manage litigation risk."
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